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Likelihood of Confusion 191
appellants’ jeans or has authorized the use of its mark, or, in the post-sale context, that
appellee has manufactured the jeans.
The second factor—the degree of similarity of the marks—also weighs in favor of
appellee. As the district court correctly observed, the two stitching patterns are “essentially
identical.” Both patterns consist of two intersecting arcs placed in the exact same position
on the back pockets of the jeans. The only difference—the fact that appellants’ arcs extend
3/4 inch further down the pocket at their intersection—is imperceptible at any significant
distance. In light of the fact that the stitching pattern is in no way dictated by function and
an infinite number of patterns are possible, the similarity of the two patterns is striking.
When this striking similarity is factored into the likelihood of confusion analysis, its great
importance becomes clear. In view of the trademark’s strength, this nearly identical
reproduction of the stitching pattern no doubt is likely to cause consumers to believe that
appellee somehow is associated with appellants or at least has consented to the use of its
trademark. In the post-sale context, this striking similarity no doubt will cause consumers
to transfer the goodwill they feel for appellee to appellants, at least initially. This misuse of
goodwill is at the heart of unfair competition. Appellants’ reliance on the effect of their
labeling with respect to this factor underscores their misguided focus on only the most
obvious form of consumer confusion. Appellants’ labeling in no way dispels the likelihood
that consumers will conclude that appellants’ jeans are somehow connected to appellee by
virtue of the nearly identical stitching patterns.
The third factor—the proximity of the products—also weighs in favor of appellee.
Both products are jeans. Although appellants argue that their jeans are designer jeans and
are sold to a different market segment than appellee’s jeans, there is significant evidence in
the record of an overlap of market segments. Moreover, even if the two jeans are in different
segments of the jeans market, such a finding would not switch this factor to appellants’ side
of the scale. We are trying to determine if it is likely that consumers mistakenly will assume
either that appellants’ jeans somehow are associated with appellee or are made by appellee.
The fact that appellants’ jeans arguably are in a different market segment makes this type of
confusion more likely. Certainly a consumer observing appellee’s striking stitching pattern
on appellants’ designer jeans might assume that appellee had chosen to enter that market
segment using a subsidiary corporation, or that appellee had allowed appellants’ designers
to use appellee’s trademark as a means of reaping some profits from the designer jeans fad
without a full commitment to that market segment. Likewise, in the post-sale context a
consumer seeing appellants’ jeans on a passer-by might think that the jeans were appellee’s
long-awaited entry into the designer jeans market segment. Motivated by this mistaken
notion—appellee’s goodwill—the consumer might then buy appellants’ jeans even after
discovering his error. After all, the way the jeans look is a primary consideration to most
designer jeans buyers.
The fourth factor—bridging the gap—is closely related to the proximity of the
products and does not aid appellants’ case. Under this factor, if the owner of a trademark
can show that it intends to enter the market of the alleged infringer, that showing helps to
establish a future likelihood of confusion as to source. We have held that the trademark
laws are designed in part to protect “the senior user’s interest in being able to enter a
related field at some future time.” In the instant case, the district court rejected as
irrelevant appellee’s affidavits which stated that appellee was planning to enter the
designer jeans market, since the affidavits did not assert that appellee’s designer jeans
entry would utilize the stitching pattern. We do not believe, however, that the form
appellee’s entry into the market segment might take is especially relevant to the likelihood